Director of Public Prosecutions (Cth) v Dirani

[2022] NSWCCA 89

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Director of Public Prosecutions (Cth) v Dirani [2022] NSWCCA 89

Hearing dates:

27 April 2022

Date of orders:

27 April 2022

Decision date:

02 May 2022

Before:

Macfarlan JA; Adamson J; Wright J

Decision:

Reasons for making the following orders on 27 April 2022:

1. Pursuant to s 50 of the Bail Act 2013 the Court:

(a)    revokes the grant of bail made by Hamill J to Mr Dirani; and

(b)    refuses bail.

2.    The Court reserves its reasons for making the above orders.

3. Pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), upon the ground referred to in s 8(1)(a) of that Act, that the order is necessary to prevent prejudice to the proper administration of justice, there is to be no publication of the evidence, submissions or judgment in the Director’s detention application.

4.    The previous order is to have effect throughout the Commonwealth and until the conclusion of Mr Dirani’s trial.

Catchwords:

CRIME — Bail — Detention application — where “exceptional circumstances” established — whether bail conditions could ameliorate risk of commission of serious offence which endangers safety of community — where conditions could not ameliorate risk — where application granted and bail revoked

CRIME — Bail — Terrorist offences — “Exceptional circumstances” — where respondent has been incarcerated for seven years — where COVID-19 pandemic has made conditions more onerous than normal — where “exceptional circumstances” established

Legislation Cited:

Bail Act 2013 (NSW), ss 17, 18, 19, 50, 67

Crimes Act 1914 (Cth), s 15AA

Criminal Code (Cth), ss 11.5, 101.6

Cases Cited:

Dirani v R [2021] NSWCCA 202

Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227

R v Dirani (No 34) [2019] NSWSC 1005

R v NK [2016] NSWSC 498

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Cth) (Applicant)
Mustafa Dirani (Respondent)

Representation:

Counsel:
S Duggan / M Kalyk (Applicant)
N Steel (Respondent)

Solicitors:
Commonwealth Director of Public Prosecutions (Applicant)
Fourtree Lawyers (Respondent)

File Number(s):

2022/118413

Publication restriction:

Publication of the evidence, submissions or judgment in the Director’s detention application is prohibited (Court Suppression and Non-Publication Orders Act 2010 (NSW))

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Date of Decision:

22 April 2022

Before:

Hamill J

File Number(s):

2022/59375

Judgment

1. THE COURT: By application filed on 26 April 2022, the Commonwealth Director of Public Prosecutions (the DPP) applies pursuant to ss 50 and 67(1)(e) of the Bail Act 2013 (NSW) (the Act) for the detention of Mustafa Dirani (the respondent) who was granted conditional bail by Hamill J (the primary judge) on 22 April 2022. The primary judge’s orders were stayed until 4pm on 27 April 2022, being the day on which the DPP’s detention application was listed for hearing before this Court.

2. At the conclusion of the hearing, after a brief adjournment, the Court made the following orders:

“1. Pursuant to s 50 of the Bail Act 2013 the Court:

(a)   revokes the grant of bail made by Hamill J to Mr Dirani; and

(b)   refuses bail.

2.    The Court reserves its reasons for making the above orders.

3. Pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), upon the ground referred to in s 8(1)(a) of that Act, that the order is necessary to prevent prejudice to the proper administration of justice, there is to be no publication of the evidence, submissions or judgment in the Director’s detention application.

4.    The previous order is to have effect throughout the Commonwealth and until the conclusion of Mr Dirani’s trial.”

3. The Court’s reasons for making these orders are as follows.

Introduction

4. This Court has jurisdiction to hear the application as the bail decision was made by the Supreme Court: s 67(1)(e) of the Act. There is no requirement that error in the grant of bail be shown as the detention application is to be dealt with “as a new hearing” and “evidence or information may be given in addition to, or in substitution for, the evidence or information given in relation to an earlier bail decision”: s 75 of the Act. In determining this application, this Court may have regard to the findings of the primary judge: Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 (Mawad) at [8] (Beech-Jones J, Gleeson JA agreeing at [1] and Adams J agreeing at [5]).

5. The respondent is 26 years old. On 13 November 2015, he was arrested and charged with conspiring to do acts in preparation of a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth). The maximum penalty for this offence is life imprisonment. The relevant terrorist act was the shooting of Curtis Cheng on 2 October 2015 by Farhad Mohammad, who was alleged to have been party to the conspiracy with the respondent and others. The respondent has been in custody since his arrest on 13 November 2015.

6. The respondent’s first trial commenced on 7 June 2018. The jury was discharged on 6 August 2018 due to juror misconduct. His second trial commenced on 29 January 2019. The jury returned a guilty verdict on 14 March 2019. On 9 August 2019, Johnson J (who was the trial judge) sentenced the respondent to a term of imprisonment of 28 years with a non-parole period of 21 years: R v Dirani (No 34) [2019] NSWSC 1005.

7. The respondent appealed against his conviction and sought leave to appeal against his sentence. On 27 August 2021, the respondent’s conviction was quashed on the basis that this Court found that expert evidence ought not to have been adduced because it was inadmissible: Dirani v R [2021] NSWCCA 202. A re-trial was ordered.

8. The re-trial of the respondent is listed for hearing on 29 August 2022. The indictment, which was presented on 22 September 2021, charges:

1.   Between about 6 August 2015 and about 2 October 2015 at Sydney and elsewhere in the State of New South Wales did conspire with Raban ALOU, Milad ATAI and divers others to do acts in preparation for a terrorist act (or acts).

…

Contrary to sections 11.5(1) and 101.6(1) of the Criminal Code (Cth)

…

[in the alternative]

2.   On or about 2 October 2015, at Sydney in the State of New South Wales and elsewhere, did knowingly take part in the supply of a firearm, to wit, a .38 special calibre Smith and Wesson model British service revolver, to Raban ALOU without Raban ALOU being authorised to possess the said firearm by licence or permit.

Contrary to section 51(1) of the Firearms Act 1996 (NSW) (Law Part Code: 81409).”

The decision to grant bail

9. As referred to above, the primary judge granted bail to the respondent on 22 April 2022. His Honour found that the length of the delay “goes a long way towards establishing exceptional circumstances” but did not, by itself, amount to exceptional circumstances.

10. The primary judge noted that it was common ground that the respondent suffered from a “sciatic back issue”. His Honour found that despite the respondent’s complaint of pain in October 2021, no “proper medical attention has been provided to [the respondent].” His Honour found that this period was “an extensive period of time for somebody to be in significant pain” and that there had been no explanation forthcoming from those at the Goulburn High Risk Management Centre as to why no treatment had been provided.

11. His Honour also accepted that the respondent’s conditions of custody had become more onerous as a result of the COVID-19 pandemic.

12. The primary judge, after addressing the material tendered by the Crown, assessed the prosecution case to be “very strong”, although circumstantial, but “not … overwhelming”.

13. His Honour addressed the question whether the respondent posed an unacceptable risk if released to bail. His Honour generally accepted the prosecutor’s submissions that the WhatsApp communications to which the respondent was a party demonstrated at least an interest in radical Islam and violent extremism and support for those philosophies. His Honour referred to the circumstance that the respondent at times refused to stand during his trial before Johnson J but said that he did not give it “very much weight”. His Honour was satisfied that there was a risk of the respondent continuing with associations with people involved in radical Islam, although he could not come to a firm conclusion as to what that risk might be. His Honour extracted from [188] of the sentencing judgment of Johnson J (R v Dirani (No 34)) which, in the Caselaw version said:

“Although the Offender does not appear to pose a risk of being a frontline terrorist attacker, there is a significant risk that he would act again in the future, as he has in the past, as an important conspirator providing critical support to those who play a greater frontline role in the commission of a terrorist act. Dr Seidler’s report provides limited assistance to the Offence on sentence.”

14. The primary judge referred to the report of Dr Katie Seidler, psychologist, dated 14 May 2019, which had been relied on by the respondent at the sentencing hearing and referred to statements the respondent had made to her.

15. His Honour said:

“… it has been a long time since Justice Johnson’s remarks were made in 2019, and there is really no evidence of the offender’s current thinking or his ongoing associations. I can’t accept the submissions made by Mr Steel [the respondent’s counsel] that initially that he had no associations outside the prison. All that can be said is that his direct co-conspirators are in jail. But one does not know what contacts he has outside or contacts he might make if he were released.”

16. The primary judge concluded that the “extraordinary delay”, the respondent’s current back issue and the failure of Justice Health to provide appropriate treatment and the likelihood that the respondent could obtain better health care if at liberty amounted to exceptional circumstances justifying the grant of bail. His Honour also said that it would be easier for him to prepare for his trial if he were at liberty but said that this was of limited weight given that he had already been tried twice before.

17. The primary judge found that the respondent posed a risk of committing a serious offence, particularly “an offence of supporting or being involved in a conspiracy to commit acts in preparation for terrorist offences” which posed a risk to the safety of the community. However, his Honour found that these risks could be sufficiently ameliorated by imposing conditions on the grant of bail, including house arrest, and that he provide the police with access to any mobile device or computer.

18. As referred to above, his Honour, having noted that the DPP proposed to make a detention application, stayed the grant of bail until 27 April 2022.

Evidence on the detention application

19. The Crown tendered a bundle of documents in support of its detention application which included the present indictment; the Crown Case Statement; the respondent’s criminal history; the judicial decisions referred to above; data relating to when the respondent did not stand for the Court during his trial before Johnson J; WhatsApp messages; an affidavit of Geoffrey Poulsen, the Senior Assistant Superintendent at the Goulburn High Risk Management Centre, dated 14 May 2019, relating to the respondent’s conditions of custody; the report of Dr Seidler dated 14 May 2019; and the affidavit of Karl Coleman, now the Senior Assistant Superintendent at the Goulburn High Risk Management Centre dated 13 April 2022 as to the respondent’s back condition. This material was all before the primary judge on the respondent’s bail application.

20. To the extent relevant, it will be addressed below in the context of the Crown case and the risks posed by the respondent.

21. The respondent tendered before the primary judge and relied on in this Court, the following: an affidavit from his solicitor, Luke Del Monte dated 24 February 2022 deposing to the respondent’s back pain and attempts to obtain treatment, his conditions of custody (which have included a large number of lock-ins) and the bail conditions proposed (house arrest with his elderly mother, the provision of surety in the sum of $1,000 and reporting to the Campsie Police Station).

Whether there are exceptional circumstances

22. Sections 15AA(1) and (2) of the Crimes Act 1914 (Cth) prohibit a bail authority from granting bail to a person charged with a terrorism offence, unless it is satisfied that exceptional circumstances exist to justify bail. It was common ground that the principles articulated by Hall J in R v NK [2016] NSWSC 498 at [26] and [28]-[31] are applicable. Relevantly, these include:

1. the requirement for exceptional circumstances imposes a rebuttable presumption against bail;

2. the requirement that the circumstances be “exceptional” is a demanding test but one which is nonetheless flexible; and

3. the circumstances can comprise subjective or objective matters, including the strength or weakness of the Crown case, and can be comprised of a combination of circumstances or a single circumstance.

23. We accept that the conditions of the respondent’s custody have been made more onerous since 2020 because of the restrictions imposed as a result of the COVID-19 pandemic.

24. The long period between the respondent’s arrest and the time at which he will next be brought to trial is the inevitable consequence of the orthodox and orderly operation of administration of justice (discharge of jury, the appeal process, the ordering of a re-trial following the quashing of a conviction on appeal). It does not reflect fault on the part of the investigating or enforcing officers, the Court or the appeal process. Nor could the respondent be said to be responsible for it.

25. Because of our view (set out below) that no conditions of bail would be sufficient to remove, or adequately ameliorate, the risk that the applicant will commit serious offences if released to bail, it is not necessary to determine whether a period of almost seven years in custody constitutes, either with or without the additional factors in the present case, “exceptional circumstances”.

The bail concerns raised by the DPP

26. The DPP has raised a number of bail concerns pursuant to s 17 of the Act: the risk that the respondent will fail to appear; the risk that he will commit a serious offence; and the risk that he will endanger the safety of individuals or the community.

Risk of failure to appear

27. The DPP relied on the likely lengthy sentence which would be imposed if the respondent were convicted as providing a substantial motive for him to fail to appear. The respondent relied on his strong family ties in support of the submission that there is little risk that he will fail to appear. We consider that this bail concern could be ameliorated by a grant of bail on conditions such as those imposed by the primary judge.

Risk that the respondent will commit serious offences if released and risk to the community

28. The respondent relied on Johnson J’s finding at [188] in the sentencing judgment that he was unlikely to be a “front-line terrorist attacker” in support of the submission that the risk could be ameliorated by the conditions imposed by the primary judge.

29. We do not accept this submission. It is important to note that Johnson J, in the same passage, considered that the respondent posed a significant risk of acting as an “important conspirator providing critical support”.

30. The role played by those who provide critical support to those engaged in terrorist acts cannot be underestimated. The supporters also pose a risk to the safety of the community. Having regard to the respondent’s statements which tend to indicate support for violent jihad, there is a risk that, if released, the act which might be “supported” by the respondent, would be, as in the alleged offence, murder of a member of the community who happened to be in the wrong place at the wrong time.

Matters relevant under s 18 of the Act

31. In deciding whether the detention application ought be granted, the matters in s 18 of the Act are relevant. To the extent relevant, these will be considered below.

The respondent’s background, criminal history and community ties (s 18(1)(a) of the Act)

32. The respondent has strong family ties and a limited criminal history.

The nature and seriousness of the offence (s 18(1)(b) of the Act)

33. The offence, if established, is a serious example of the conduct covered by s 101.6(1) of the Criminal Code.

The strength of the Crown case (s 18(1)(c) of the Act)

34. Mr Steel, who appeared on behalf of the respondent, accepted that the Crown case was strong. In these circumstances, it is not necessary to do more than summarise it briefly.

35. The Crown case is that the respondent, Raban Alou, Milad Atai and others entered into a conspiracy to do acts in preparation for a terrorist act, being the killing of Mr Cheng outside the Parramatta Police Station by Farhad Mohammad, a 15-year-old male, on 2 October 2015. The firearm used in the killing was supplied to Mr Mohammad by Mr Alou, who obtained the firearm from Talal Alameddine earlier that day.

36. The Crown proposes to adduce evidence which comprises:

1. Evidence of the respondent’s extremist views and his association with others who share those views through his participation in WhatsApp chat groups;

2. Video surveillance which shows the respondent’s movements, particularly on 2 October 2015 and listening device recordings which put such movements in context (set out in more detail below); and

3. Evidence before and after 2 October 2015 which is capable of showing that the respondent supported the idea of a terrorist attack and that he knew that it had happened.

37. The Crown case relies on the respondent’s presence at various meetings which took place between Mr Alou and Mr Alameddine on 2 October 2015 in the hours before the shooting. The Crown case is that the respondent helped Mr Alou by providing encouragement and support in the lead-up to these meetings, providing money to help Mr Alou buy the firearm and accompanying him to the meetings and acting as a look-out.

38. The Crown will rely on comprehensive surveillance footage of the movements of Mr Alou and the respondent on 2 October 2015, together with audio intercepts, which on the Crown case show the matters set out in the table below.

Location	Event	Source
Public phone box (Mr Alameddine) / Paramatta Mosque (Mr Alou and the respondent)	Mr Alameddine made a call from a public phone box to Mr Alou’s mobile. Mr Alou answered the call outside the Parramatta Mosque. After taking the call, Mr Alou spoke to the respondent (in person) and they both left the Mosque in separate cars, heading in the same direction	Video surveillance
Afterwards / on the way from Paramatta Mosque to Jones Park	The respondent drove his car in the direction of Jones Park. Mr Alameddine followed him in his car.	Video surveillance
Jones Park	When the respondent arrived at Jones Park, he parked his car some distance away from where Mr Alou had parked his car, in a position which gave the respondent clear line of sight of a meeting between Mr Alou and Mr Alameddine. Mr Alameddine was standing in an open field and was approached by Mr Alou. Mr Alou asked Mr Alameddine what he had brought, to which Mr Alameddine responded that he had brought “the 30 cal” [.30 calibre firearm]. Mr Alou rejected it and said that he would have to go to Merrylands. Mr Alou left Jones Park with Mr Alameddine. The respondent followed them. They all drove from Jones Park to Warwick Road.	Video surveillance; listening device
Warwick Road	Mr Alou and Mr Alameddine got out of Mr Alou’s car and had a conversation for about 7 minutes on the footpath. The respondent remained seated in his car. Before leaving for the next destination, Mr Alou went to the respondent to speak to him in his vehicle while Mr Alameddine walked away and looked back over his shoulder.	Video surveillance
Merrylands Park	Mr Alou and the respondent parked side by side. At 1.53pm Mr Alou spoke to the respondent, while each was inside his car, and said (on the Crown case): “You know I told you when he’s going to thing, did I tell you where? I told you, I said it [indistinct] car … it will affect, the brother, Parra, affect the masjid [mosque], mine, it will affect me, do you know anything.” Later, the respondent and Mr Alou got out of their respective cars and waited until Mr Alameddine entered the carpark on a bicycle which he positioned between the respondent’s car and Mr Alou’s car. While Mr Alou and Mr Alameddine were talking to each other, the respondent walked around, apparently keeping a look-out and looked towards the two of them. Mr Alameddine and Mr Alou appeared to be handling something which could not be seen.	Video surveillance; listening device
Lane Street, Wentworthville (Mr Alou’s residence)	Mr Alou and the respondent spent about 10 minutes in the vicinity of Mr Alou’s residence. Mr Alou retrieved a white item from the front seat of the respondent’s car before the respondent left. The Crown will submit at trial that this item could be the bubble wrapped phones of Mr Mohammed (the shooter) and his sister, Shadi, who on the Crown case radicalised her brother and left Australia the day before the attack (and has not returned).	Video surveillance and search warrant.

39. The defence case is that the respondent had an interest in Islam but that on 2 October 2015 he was accompanying Mr Alou with the intention of having lunch with him and was merely an innocent bystander who was neither aware of, nor involved with, Mr Alou’s attempts to obtain a firearm to provide to Mr Mohammed for the purpose of the shooting which was to occur later on 2 October 2015.

40. The Crown case would appear to be very strong given the evidence referred to above. In this respect, we agree with the assessment to that effect made by the primary judge. Further, it is significant that the ground of appeal that the verdict returned by the jury in the trial before Johnson J was unreasonable was found by this Court not to have been made out.

Whether the respondent has criminal associations (s 18(1)(g) of the Act) or has made statements supporting terrorist acts or violent extremism (s 18(1)(r) and (s) of the Act)

41. The evidence summarised above shows that the respondent had a close association with Mr Alou and Mr Alameddine who held extremist views and were involved in acts in preparation for a terrorist attack. The chat groups to which the respondent belonged showed that he was in regular contact with people who held extremist views and approved of violent jihad, that is, resort to violence for religious reasons.

42. It is not necessary to extract the incriminating messages. It is sufficient to note that on 9 July 2015, the respondent posted a message which said:

“… don’t be red hot, they will use anything just to put us behind bars, wallahi be smart my brothers, the prophet … said a believer doesn’t fall into a trap twice”

43. Other messages posted by the respondent and his associates derided the police and moderate Muslims. On 5 October 2015 (three days after the killing of Mr Cheng), the respondent posted a message to the effect that he had caught two surveillance cars taking photographs of his house and that he chased them. He described them as “cowards”. He boasted, “I’m like wow dealing with babies here.”

44. The report of Dr Seidler dated 14 May 2019, which was tendered on behalf of the respondent at the sentence hearing before Johnson J, records Dr Seidler’s opinion that:

“Summary – Overall, on the basis of the VERA-2R, I would consider [the respondent] to pose a Moderate risk of involvement in future terrorist action. Based on the information available to me, I would suggest that his risk is lower in relation to his directly carrying out an act of extremist violence himself, Rather, [the respondent] is more likely to be involved in such conduct from a contextual position, such as that of a supporter, [sympathiser] or conspirator. The primary motivation for any such conduct would be [the respondent’s] religious commitment within the context of extremist ideology and whilst I note that he does present with some protective factors, these are not strong.”

The length of time the respondent is likely to spend in custody if bail is refused, the likelihood of a custodial sentence (s 18(1)(h) and (i) of the Act)

45. As referred to above, the trial will take place in about four months. If convicted, a custodial sentence is well nigh inevitable. The time on remand is likely to be significantly less than any non-parole period, having regard to the seriousness of the offence.

The need for the respondent to be free to prepare for his trial (s 18(1)(l) of the Act)

46. As explained by the primary judge, this factor is of lesser weight in the present case as the imminent trial will be, in effect, the respondent’s third trial.

The need for the respondent to be free for any other lawful reason (s 18(1)(m) of the Act)

47. Mr Steel contended on behalf of the respondent that he had suffered from debilitating back pain since October 2021, that, despite a referral to an orthopaedic specialist for an expert opinion, he had not yet seen such a specialist and that he would be more able to obtain such an opinion if at liberty.

48. The seriousness of the respondent’s back pain is in issue. While the respondent has, in Justice Health reports tendered, reported that his pain is, at times, “9 out of 10”, the clinical history taken and assessments made have indicated that the pain is less serious than the respondent’s complaints would indicate. The aggravation of long-standing back pain was brought about, on the respondent’s history, when he tried to run. He reported that he had had back pain since he was 15 years old but that it was “[u]sually never treated because pains would normally come and go over a few days.” The referral form indicated that the referring clinician assessed the clinical urgency of the referral to be “non-urgent”.

49. We accept that the further restrictions imposed as a consequence of the COVID-19 pandemic, including the number of lock-downs due to staff shortages make the respondent’s custody more onerous.

Conclusion

50. Having regard to the matters referred to above, we do not consider that the risk posed by the respondent that he will, if released, commit serious offences which endanger the safety of the community can be removed or ameliorated by granting bail on conditions. All the respondent would need to do to breach his bail conditions would be to open the front door of his elderly mother’s house and walk out into the community. He could readily re-engage with his associates who share his extremist views. We are not persuaded that the respondent has had a change of heart or mind since the commission of the alleged offence.

51. Although the respondent’s failure to stand when directed by Johnson J to do so in his trial may not be regarded as a matter of great moment, it does not give any basis for confidence that the respondent has any intention of complying with his bail conditions. The messages he posted to chat groups show a cynical disregard for the authority of law enforcers in Australia and a desire to thwart them. The following message reveals a contempt for authority and a willingness to use any available opportunity to promote religious extremism:

“… don’t be red hot, they will use anything just to put us behind bars, wallahi be smart my brothers, the prophet … said a believer doesn’t fall into a trap twice.”

52. In these circumstances, there is, in our view, no realistic possibility that the applicant would, if released to bail, comply fully with the conditions imposed. We are therefore satisfied that there exists “an unacceptable risk” within the meaning of s 19 of the Act.

53. We were, when the orders were made, and remain, satisfied that the DPP’s application should be granted, the bail granted by the primary judge revoked and bail refused. It is necessary to protect the respondent’s trial by ordering that the evidence, submissions and reasons not be published until the trial has been determined.

**********

Amendments

27 November 2023 - Publication restriction removed – judgment published

Decision last updated: 27 November 2023